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Why Most Document Retention Policies in the Digital Era Are Ineffective
Many companies have document retention policies in which paper and electronic documents are discarded or deleted after specified time periods, depending on the content and type of document. Those policies serve to keep sensitive information from getting into the hands of others, as well as to control the amount of physical and digital memory space needed to store documents. See Arthur Andersen LLP v. United States, 544 U.S. 696, 704 (2005). Some companies, for example, automatically delete e-mails older than 3 months, unless specifically saved by an employee. See Hynix Semiconductor, Inc. v. Rambus, Inc., No. C-00-20905 RMW, 2006 WL 565893, at *11 (N.D. Cal. 2006). Courts, including the U.S. Supreme Court, have recognized that there is nothing wrong with such policies, even where they might result in the destruction of documents that might be material in a later lawsuit, as long as that lawsuit was not reasonably foreseen at the time the documents were destroyed. See Arthur Andersen, 544 U.S. at 704 ('It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.'); Samsung Elecs. Co. v. Rambus, Inc., 439 F. Supp. 2d 524, 543 (E.D. Va. 2006) (citing Arthur Andersen).
When it comes to electronic documents, however, common document retention policies do not achieve their goal of preventing sensitive information from falling into the hands of others. That is because deleting an e-mail or electronic document does not actually remove that information from a computer. Instead, the deleted information remains there, typically on the computer's disk drive, until it is overwritten by other information. That may not happen for years ' or ever. In the meantime, that information may be recovered using software tools designed for recovering deleted information, and may be subject to discovery in legal proceedings. Thus, common document retention policies for e-mail and electronic documents are not completely effective or reliable.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.